In 1818 Judge Joshua Giles Clarke spoke for the brand new Supreme Court of Mississippi at its first term and granted three “sold down the River” slaves their freedom because they had lived on lands the Congress had declared free soil de jure by the Northwest Ordinance of 1787. This was the first known case where at the end of the day the court of last resort in a southern slave state had accepted the freedom-by-residence legal theory and ruled that the slaves in question were free. Only Kentucky, Virginia, Louisiana, and Missouri would follow before Dred Scott v. Sandford (1857). In 1821 Judge Clarke again spoke for the court, holding de jure that a slave retained enough of his humanity that he was protected by the common law of homicide.
In his heyday, formally commencing July 9, 1818, Clarke held the dual offices of judge of the state Supreme Court and superior trial court judge. In the latter capacity, he served what was then the First Judicial District of the new state (Warren, Claiborne, and Jefferson Counties). In late November of 1821 Clarke resigned his dual judgeship and became the first chancellor of Mississippi, serving until his death on July 22, 1828. He had practiced law in the southwest Mississippi territory as early as 1804.
Clarke is believed to have been born in Maryland. From there the Clarke family moved to Pennsylvania, where Joshua got his schooling. In time, he moved to Mississippi, where he met and married Martha “Patsy” Calvit. For the remainder of his life, Clarke and his family resided in Port Gibson in Claiborne County, Mississippi.
Politically, Joshua Giles Clarke was a Jeffersonian Republican, and he represented Claiborne County in the Mississippi Territorial Legislature. In the summer of 1817 he served as a delegate to the constitutional convention preliminary to Mississippi’s statehood. With or without the awareness of his fellow delegates, Clarke laid the core ideology of the French political philosopher Jean-Jacques Rousseau at the heart of the new state constitution. Noted Mississippi archivist and historian Dunbar Rowland (1864–1937) deemed Clarke “one of the best legal minds at the convention [who] did faithful service by his wise advice and counsel.”
In the summer of 1818 Clarke drew the writing assignment on the appeal in the case captioned Harry and Others v. Decker and Hopkins. Clarke relied on his experience at the constitutional convention, and his discussion of Rousseau’s “social compact” theory was likely a product of his own education and general reading, not the argument of counsel. Because the three slaves central to the case had lived for a substantial period of time on free soil in the southwestern Indiana territory, albeit under the de facto control of the Decker family, who hailed from the New York Dutch country, in the eyes of the law the slaves had become free persons. Their slave status was not resurrected when they were brought into Mississippi to be sold in the Natchez market.
Judge Clarke found that freedom for Harry and the other two was a close question, but he concluded his opinion with a famous passage: “[Slavery] exists and can only exist through [positive] municipal regulations, and in matters of doubt is it not an unquestioned rule that courts must lean ‘in favorem vitae et libertatis’ . . . How should the Court decide, if construction was really to determine it? I presume it would be in favor of liberty.” Three years later, in the State v. Jones (a case in which a white man, Isaac Jones, killed a slave), Clarke confirmed that slaves were protected by common laws against homicide, stating, “The law views them as capable of committing crimes. This can only be upon the principle that they are men and rational beings. . . . [A slave] is still a human being and possesses all those rights of which he is not deprived by the positive provisions of the law.” And so on July 27, 1821, the sheriff of Adams County had Isaac Jones hanged.
A century later, widely renowned Justice Virgil A. Griffith would opine that Clarke “fortunately was selected as the first chancellor, the position being regarded as preferable to a place on the Supreme Court bench. Historian James D. Lynch had praise for Clarke: “He possessed in a high degree that placid temper and amiable patience which comport so compatibly with the requisite character of a good chancellor and a just judge.” Regrettably, little else is reliably known of Clarke’s six-plus-year career as the first Chancellor of Mississippi.
In July 1817 Clarke became a founding member of the Washington Lodge of the Freemasons in his hometown of Port Gibson. In 1826 he played a leading role in establishing Mississippi’s first diocese of the Protestant Episcopal Church in the United States. In 1833 the state created a new county in eastern Mississippi, carved out of former Choctaw lands, and coterminous with the western boundary of Alabama. The new county was named Clarke County.
Portions of this material originally appeared in James L. Robertson’s Heroes, Rascals, and the Law Constitutional Encounters in Mississippi History (University Press of Mississippi).
- Calvitt Clarke,III, “The Life of Joshua G. Clarke: Mississippi’s First Chancellor,” FCH Annals: Journal of the Florida Conference of Historians (May 2013)
- J. Calvitt Clarke,III, “A Path Not Taken: Joshua Giles Clarke of Mississippi, Supreme Court Judge and Chancellor,” www.academia.edu/5660628
- Andrew T. Fede, “Judging against the Grain? Reading Mississippi Supreme Court Judge Joshua G. Clarke’s Views on Slavery Law in Context,” FCH Annals: Journal of the Florida Conference of Historians (May 2013)
- James Daniel Lynch, The Bench and Bar of Mississippi (1880)
- James L. Robertson, Heroes, Rascals and the Law: Constitutional Encounters in Mississippi History (2019)
- John Ray Skates Jr., A History of the Mississippi Supreme Court, 1817–1948 (1973)